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“The Worst Question You Can Ask in Direct Examination”
by Elliott Wilcox
I'd done it again. I'd asked the witness a stupid question, and
now I was paying the price. In fact, I'd asked him one of the
worst questions we can ever ask during direct examination. The
question wasn't going to lose the case for me, but it certainly wasn't
going to help my case, either. So, what was this boneheaded
question I asked? Here it is: “What happened next?”
You're probably thinking, “What's wrong with that question?
I ask it all the time.”
Well, to be honest, I didn't think it was a stupid question when I'd
asked it, either. After all, it's one of the questions favored by
trial lawyers around the world. If there is a “Top Ten” list of
questions asked by trial lawyers, “What happened next” is probably the
#1 or #2 response. It's one of those reliable questions you can
pull from your trial toolkit and ask when your brain goes blank and you
can't think of anything else to ask. And it's a powerful question,
too. Even though it's only three words long, it's guaranteed to
get a response. Yet, despite it's popularity, “What happened
next?” is one of the worst questions we can ask during direct
examination.
“What happened next?” is a lousy question because it doesn't give the
witness any guidance on how to answer your question. You may know
where you're headed with your questions, and you may know what you want
him to say, but that doesn't mean your witness knows what he's supposed
to say. Even if you've spent hours and hours preparing, you can't
assume that the witness knows what he's supposed to say next.
There are a few reasons why the witness probably doesn't know where
he's supposed to go. The first reason is because he's nervous and
has probably forgotten most of your pre-trial instructions. You're
probably not nervous, because you work here in the courtroom everyday.
But your witness doesn't. The courtroom is a place that he tries
to avoid, if possible. Even if he testifies on a regular basis,
sitting in the witness stand and answering questions before a judge and
jury is still a nerve wracking experience. That nervousness
prevents him from thinking as clearly as possible, and improves the
chances that he'll misunderstand how he should respond to your question.
The second reason why he probably doesn't know how he should respond
is because, unlike you, he doesn't have any notes to help guide him.
You've got a script (or at least an outline) that keeps you on track and
allows you to easily move from topic to topic, but while your witness is
in the witness stand, he's not even allowed to use a rough outline.
The final reason why your witness isn't responding as expected is
because he can't read your mind. In your head, you know exactly
where your questions are headed, and you know what answers you expect.
But since your witness can't read your thoughts, there's a good chance
that he won't know which “next” event you're referring to.
If you want witnesses to give you the best possible answers, you need
to give them some type of guidance. That doesn't mean you should
ask them leading questions. The witness doesn't need to be told
word-for-word what to say. He just needs a little guidance about
which direction his testimony should go.
That's why “What happened next?” is such a terrible question.
It doesn't give the witness any guidance at all. When you ask the
witness to tell you what happened next, you're not doing anything to
narrow his range of responses. Technically, there may have been a
million different things that happened “next.” Which one do you
want the witness to talk about?
Without guidance, your witness may be thinking, “What happened next?
Well, the earth spun on its axis and rotated around the sun; my
heartbeat sped up; I took a breath; a white car passed by me in the left
lane; a man wearing a red jacket stepped off the sidewalk; I turned to
the southeast; the traffic light turned from green to yellow; two men
walked out of the grocery store; a lady ten feet to my left ducked down
and screamed; I unholstered my concealed firearm; my partner opened the
trunk of the patrol car... A lot of things happened 'next.'
Which one did you want me to talk about? Oh, the shots that were
fired? Yeah, I heard that too.”
“What happened next?” is simply too broad a question. It allows
for a whole world of possible responses. If you want to help your
witness tell his story more effectively, give him some idea of what he's
supposed to say by focusing his attention toward a narrower range of
responses. Instead of asking, “What happened next,” ask something
like this:
- “Where did you drive to next?”
- “Who did you speak to after that?”
- “What was the next test you performed on the substance?”
- “How does the man in the white jacket react?”
- “Let's focus your attention on the operating nurse. What
does she do next?”
See how the questions direct the witness towards a limited area?
By narrowing your witness's range of responses, you make it easier for
him to answer. Focusing him towards a limited area lets him know
where you're headed with your questions, and allows him to give
you much better answers. Rather than asking “What happened next,”
give your witness a little bit of guidance, and he'll testify better
than he ever has before.
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www.TrialTheater.com |
The
first lesson comes from a sporting event that EVERYONE knew
about: After an 0-5 start, my kickball team finally won our first game
of the season! The lesson? Don't carry an open beer out on
the field, because you'll spill it while trying to catch the ball.
Oh wait, nevermind, that wasn't the lesson I meant to share... The
real lesson was this: No matter how bad your streak is, the next time
you walk into the courtroom, don't waste any time dwelling on your
win/loss ratio, because your past history has no bearing on the outcome
of this case.
